Friday, 30 October 2009

On 19 and 20 February 2010 the University of Geneva is organising a conference on the influence of the ECHR on (international) criminal law. The conference will largely be in French. This is the programme:

An important aspect of the structure of fundamental rights is the bifurcation between the definition of scope and the review of justification. This bifurcation is of great importance to the division of the burden of proof and to the use of argumentative tools such as the doctrine of the margin of appreciation. Nonetheless, it appears that the European Court of Human Rights does not always take the bifurcation seriously. It often omits to address issues of definition or merges the two elements into one single test. This paper highlights some of the problematic consequences of the Court’s approach towards the structure of fundamental rights. In the end, the Court’s current approach may hamper the effectiveness of the Convention system and limit the protection offered to individual citizens. A more structured approach towards the scope and definition of Convention rights may help to avoid or solve these problems.

Monday, 26 October 2009

When in 1985, a Maltese woman was hanging some laundry from her window above the courtyard of her downstairs neighbour, she would never have guessed that the ensuing dispute would lead - years after her death - to a judgment by the Grand Chamber in far-away Strasbourg. Yet, that is exactly what happened earlier this month as the European Court handed down its judgment in the case of Micallef v. Malta (Appl.no. 17056/06). It found a violation of the right to a fair trial, just as a section of the Court found last year. The main reason was that one of the judges in the domestic proceedings was close family of the lawyer of the other party in the dispute.

But the key issue in this Grand Chamber case can be found in a new approach to the scope of the "civil limb" of Article 6 ECHR, which does not cover all judicial proceedings but only those that relate to criminal chargers and civil rights and obligations. The line of the Court thus far was that interim measures such as injunctions did not fall within the scope of Article 6. However, in this judgment the Grand Chamber adopted a new approach, pointing to a widespread consensus in Europe (including the position of the ECJ!) and to the reality that in many cases interim measures "will often be tantamount to a decision on the merits of the claim for a substantial period of time." Thus the European Court considered it justified to hold that Article 6 covers interim measures, but depending on certain conditions. In order not to distort the very detailed reasoning of the Court (on which a few of the dissenters disagree by the way), I quote them here in full:

84. First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention (see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 39, Series A no. 301-B; König v. Germany, 28 June 1978, §§ 89-90, Series A no. 27; Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001-VII; and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005-X).

85. Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.

86. However, the Court accepts that in exceptional cases - where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process - it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question.

Another point, again emphasized in some of the dissents, is whether such a trivial case merits consideration by the European Court and whether the applicant, the brother of the deceased protagonist in the case, was a victim himself. Well worth reading also in the context of the discussion to what extent the system offers venues for proceedings which resemble an actio popularis.

Friday, 23 October 2009

The newest issue of the Human Rights Law Review (volume 9, No. 3, 2009) includes three articles which deal with ECHR matters. The first is by professor Wojciech Sadurski and is entitled 'Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments'. I earlier read the working paper version of it and can wholeheartedly recommend it. Especially the issue of pilot judgments is one on which I am also currently doing research (e.g. for a special ECHR issue of the Greek law journal Nomiko Vima, to appear later this year, and for a forthcoming book on ECHR and Conflict). This is the abstract of Sadurski's engaging article:

The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Contracting States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe were ‘like-minded’ and the Convention system did not represent a challenge to their internal patterns of human rights protection. This article, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction that it is merely a sort of super-appellate court which scrutinises individual decisions rather than laws in Contracting States. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Contracting States, while also facilitated by collaboration between the European Court of Human Rights and national constitutional courts. The emergence of so-called ‘pilot judgments’ is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively ‘pierces the veil of the State’, and positions the European Court as a quasi-constitutional judicial body at a pan-European level.

Also in this issue of HRLR, two extensive case law commentaries:

* Sangeeta Shah, 'From Westminster to Strasbourg: A and others v United Kingdom'* Steve Foster, 'Reluctantly Restoring Rights: Responding to the Prisoner's Right to Vote'

Thursday, 22 October 2009

It's still some months away, but the University of Newcastle is organising a conference on 23 January 2010 entitled 'Human Rights – A Drop of Liberation or Fig Leaf of Legitimation?', which will partly be devoted to ECHR-related issues. Here is the announcement:

Confirmed Speakers:* Professor David Kennedy, Harvard University - ‘The International Human Rights Movement: Still Part of the Problem?’* Professor Keith Ewing, Kings College London - Title to be confirmed* Professor David Bonner, University of Leicester - ‘If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on “national security” deportations’* Professor Christine Bell, University of Ulster - ‘Human rights activism, expertise and academic inquiry: beyond legitimation v emancipation - a self-critical reflection’* Steven Wheatley, Reader, University of Leeds - ‘The problematic authority of international human rights law.’

This symposium draws upon the proliferation of academic commentary asserting that the international human rights system is in a state of crisis in the first decade of the twenty-first century, a discourse which requires an evaluation of both the impact and future direction of the human rights project. With papers from world leading authorities on human rights, this symposium provides a forum for the re-evaluation the effectiveness of human rights as an element of international law and in the domestic context of the United Kingdom at the end of a decade when the human rights project has faced renewed and novel challenges. Moreover, this Symposium draws together skeptics and supporters as well as disparate strands of transatlantic scholarship.

A limited number of places for delegates are available on a first-come-first-served basis, at a cost of £30 per head (or £10 per head for full-time postgraduates), inclusive of lunch and refreshments. Full details of the Conference Programme are available on the Newcastle Law School Website. For further details regarding this symposium, please contact Dr Rob Dickinson (r.a.dickinson at ncl.ac.uk) or Dr Ole W. Pedersen (ole.pedersen at ncl.ac.uk).

Tuesday, 20 October 2009

This is a picture of a carnival parade in which US president Barack Obama is shown with wings carrying the text of his campaign phrase "Yes we can", to which the figure Europa is clinging with the text "We too". Benevolent humour with a clear reference to a topical political issue. Two cases of comparable satire were decided by the Court recently. In both cases the authorities involved had violated the freedom of expression in punishing various forms of satire.

The first was the case of Kuliś and Różycki v. Poland (Appl.no. 27209/03), decided by the Court on 6 October. This concerned the publication of cartoons in a children's magazine. The cartoons were a parody on an advertising campaign by a potato crisps company, Star Foods. The cartoons depicted a child talking to a famous dog cartoon character for children, Reksio, saying: "Don't worry, I would be a murderer too if I ate this muck!". It was a direct reaction to the company's advertising campaign in which the popular character Reksio was oddly called a murderer (other parts of the campaign referred to sexual behaviour or alcohol or were even racist). The potato crisps producer was not amused by the parody and sued the magazine. The publisher and editor were sentenced by domestic courts to publicly apologize for the cartoons and to pay an amount of money to a charity. The main justification given by the Polish courts was that the cartoons discredited the crisps unjustifiedly. The defence of the applicants was that the cartoons were meant as a satirical comment on the advertising campaign, not on the product as such. The European Court agreed with them, emphasizing that a certain degree of "exaggeration or even provocation" was permissible for the press, especially when it concerned a question of public interest. In this case, the Court held that in para. 38 "that the applicants' aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales."

The other case is directly related to carnival itself. In Alves da Silva v. Portugal (Appl.no. 41665/07), the applicant was prosecuted and convicted for driving around during carnival with a puppet representing the mayor of Mortágua with symbols of corruption on the puppet and for broadcasting a pre-recorded message of satire on the Mayor's suggested illegal acts. The applicants was ordered to pay a fine, damages and costs of over 4,000 euros. Again, the European Court decided in favour of the applicant and held that the expressions were clearly satirical and in the context of carnival could hardly be taken literally. It stressed once more the importance of satire in public debate. One may add that the mayor of this Portuguese town has not at all understood the essence of carnival which very essence is - as any anthropologist could have told him - a reversal of roles, a topsy-turvy festival in which the powerless criticise the powerful.

The judgments can be found on the HUDOC search engine and the press releases can be found here. The second judgment is only available in French.

Both cases could be laughed off as bizarre instances of the kind of situations that reach Strasbourg. But equally, they point to a worrying development in various European countries in which commercial or political interests are attacking even the most innocuous expressions. In that respect, it is good that the European Court is taking jokes seriously.

Thursday, 15 October 2009

At a round table discussion held in Bled in Slovenia on 21-22 September, the Court's registrar gave his views on how the Court could deal with repetitive cases pending further reforms. Although these are his personal views, they do give a good insight in the main thrust of the discussion taking place currently. The full text of the speech 'Bringing Rights Home - or how to deal with repetitive applications in the future', can be found here.

Many thanks to professor Rick Lawson of Leiden University for pointing this out to me!

Wednesday, 14 October 2009

The EU Observer reports today about a hunger strike in Romania, related to the massacres which took place in 1989 during the chaotic days of the fall of the Ceaucescu regime. Teodor Maries, the head of an organisation of family of victims of those days, is in hunger strike in order to put pressure on the Romanian authorities to release the secret service files which could shed more light on what happened precisely twenty years ago and on whom could be held to account. The issue of the massacres has been brought to Strasbourg in a case in which the Court has issued an interim measure. This is what the EU Observer reports:

According to the press office of the Strasbourg-based European court for human rights, the Romanian authorities have a deadline of 30 October to grant Mr Maries access to all the "relevant" files in his case. An emergency procedure, the so-called Rule 39, was applied in his case due to the urgency of Mr Maries' health condition.

I was not yet able to find a press release of the Court itself or any information on its website, but this is certainly a sad and dramatic case to be followed. The full article on EU Observer can be found here.

Tuesday, 13 October 2009

The NGO Human Rights Watch has published a report on Russia’s implementation of Strasbourg judgments relating to Chechnya: "Who Will Tell Me What Happened to My Son?". The report investigates a number of cases in which the European Court found violations of the Convention and specifically delves into the aftermath. What happened after the judgments were issued. The short answer is saddening: almost nothing. The report shows that not a single person was brought to justice afterwards. It seems that thusfar Russia limits itself to paying the required compensation to the victims, but stops there. The report mentions that "in a troubling new trend, in several cases Russian investigative authorities have flatly contested the court's findings of state responsibility for human rights violations in Chechnya, even in cases in which those officials participating in the operations that led to violations or their superiors are known and named in court judgments." Hopefully the Committee of Ministers and other organs of the Council of Europe will use the evidence presented in this and other reports to make sure that Russia will start to implement the Court's judgments much more effectively. This is the abstract of the report:

This 38-page report examines Russia's response to European Court judgments on cases from Chechnya. In almost all of the 115 rulings, the court concluded that Russia was responsible for extrajudicial executions, torture, and enforced disappearances, and that it had failed to investigate these crimes. In the 33 cases researched by Human Rights Watch, Russia has still not brought a single perpetrator to justice, even in cases in which those who participated in or commanded the operations that led to violations are named in the European Court judgments.

The present volume deals with terrorism, both the legislative reactions to it and its impact on human rights. It is argued that the preservation of human rights is vital for the prevention of terrorism, encompassing state and non-state terrorism alike. Further, the study shows that legislators tend to disregard fundamental human rights when confronted with terrorism. They are “terrorised” themselves by the incident and risk to overreact.

After an historical account of selected (pseudo-?)terrorist movements throughout time and space, an inventory of anti-terror legislation in four European countries within the last forty years follows. In this context, the author examines the role of the judiciary with a special focus on the European Court of Human Rights in Strasbourg. As a result, we get a complex view on what happened with regard to terrorism and anti-terrorism in different European countries in the past and is happening at present, and what this means for human rights. This allows us to put contemporary anti-terror legislation into perspective. How have different governments dealt with terrorism in the past? How has the law developed after September 11th 2001? Which lessons can be learned, and what can we expect in the future?

A table of contents can be found here. The book is published in the dissertation series of the Netherlands School of Human Rights Research whose new website, in which I was involved, was just launched last week. The site also includes a list of expertise which can be helpful in finding ECHR experts in the Netherlands.

Tuesday, 6 October 2009

Its been three weeks now, but the Grand Chamber judgment of the Court in Varnava a.o. v. Turkey is important enough to highlight here. The case concerns a number of disappearances which occurred in 1974 during the the armed conflict on Cyprus. The disappeared persons were last seen in areas under the control of the Turkish militrary. Only very recently, in 2007, the bodily remains of one of the disappeared was found and identified.

Largely in line with the findings of the earlier Chamber judgment of 2008, the Grand Chamber found violations of Articles 2,3 and 5 ECHR. But in contrast to the Chamber, it did award the applicants just satisfaction for non-pecuniary damages.

One of the main points of discussion in this case was a question of admissibility: the interpretation of the rule that an application normally needs to be lodged within six months after exhausting domestic remedies. The Grand Chambwer tried to clarify its case law on this point, but did not entirely succeed in that. Rather it came, through intricate argument, to an assessment which is nuanced but not clear-cut. Various judges address this issue in separate opinions, which show how much discussion there must have been on this point.

Another interesting feature is the Court's elaborate referencing to case law from the Inter-American human rights system and the UN Human Rights Committee. In addition, the Court - for one of the first times explicitly - made use of international humanitarian law to strengthen its reasoning under Article 2. In paragraph 185 it held:

As concerns the other seven men, no such documentary evidence of actual detention has been forthcoming. There is nonetheless an arguable case that the other seven men were last seen in an area under the control, or about to come under the control of the Turkish armed forces. Whether they died, in the fighting or of their wounds, or whether they were captured as prisoners, they must still be accounted for. Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict. The Court therefore concurs with the reasoning of the Chamber in holding that in a zone of international conflict Contracting States are under obligation to protect the lives of those not, or no longer, engaged in hostilities. This would also extend to the provision of medical assistance to the wounded; where combatants have died, or succumbed to wounds, the need for accountability would necessitate proper disposal of remains and require the authorities to collect and provide information about the identity and fate of those concerned, or permit bodies such as the ICRC to do so.

One may expect more of this in the years to come, especially with the pending cases concerning the Russian-Georgian conflict of last year. The argument to use international humanitarian law was put forward by Cyprus, as an intervening state in the case. All parties, by the way, were supported by legal advice of the highest caliber: Jochen Frowein for Turkey, Ian Brownlie for the applicants, and Françoise Hampson for Cyprus.

Four concurring opinions and one dissenting opinion are attached to the judgment. The press release in English can be found here.